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Oral ruling on a defence application for leave to cross-examine the affiant on an ITO. Leave was granted in part and denied in part, with informer privilege limits preserved.
The court granted the Crown’s summary dismissal in part, striking a speculative challenge to the existence or status of informants, but let the disclosure request proceed.
Given the serious privilege and confidential informant issues and the potential that the innocence at stake test may be engaged, and because the Crown agrees that other grounds of appeal should be determined first, the court converted the matter to a solicitor appeal, granted a s.684(1) order and appointed counsel (Mr. Lacy) for the limited purpose of pursuing the motion for directions; the Associate Chief Justice will case manage the matter and the motion will proceed only if other grounds fail.
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The trial judge applied the wrong standard by asking whether the disclosure 'tended to' disclose the informant rather than whether the disclosure might tend to identify the informant; applying the correct 'might tend to identify' standard, the Crown breached confidential informant privilege and the conduct was egregious such that no alternative remedy sufficed and a stay of proceedings for abuse of process was required, therefore convictions were set aside and a stay entered.
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The in camera ex parte procedure and the trial judge's conduct of the CI hearing were proper; appellants failed to meet the high threshold for the innocence at stake exception and did not establish abuse of process; the trial judge permissibly drew reasonable inferences from cumulative circumstantial evidence and his credibility findings were entitled to deference, therefore convictions and related appeals were dismissed.
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The court ordered return and sealing of several mistakenly disclosed documents in a prison-assault action, while adjourning the video issue for further consideration.
Under Jordan the net delay exceeded the presumptive ceiling but a discrete, unforeseeable CI-related adjournment qualified as an exceptional circumstance and transitional exceptional circumstances justified remaining delay; however, the trial was unfair because the trial judge admitted expert evidence from an investigator without properly applying Mohan/White Burgess gatekeeping on bias, issued an unexplained Corbett ruling that risked prejudicing the accused and undermined the decision to testify, and delivered a jury charge that denigrated the defence witness; the combined errors denied a f…
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The trial judge erred in principle by refusing to permit cross-examination of the affiant about corroborative material (para.12) because defence established a reasonable likelihood that such cross-examination would produce evidence undermining the affidavit's corroboration; that error required quashing the convictions and ordering new trials. The trial judge properly declined appointment of amicus on the record before him. Execution at 10:47 p.m. did not engage Criminal Code s.488 because the warrant was issued under CDSA s.11 which permits execution at any time.
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The court refused to reopen or reconsider an appeal concerning privilege redactions, finding differences between two affidavits did not create a miscarriage of justice.
The Court declined to permit the appellant to raise a novel s.7 challenge to Garofoli step six on appeal because the trial record was not adequate and the issue was not supplementary to the trial challenge; the trial judge did not err in finding the judicial summary satisfied Garofoli step six and the warrant could have issued; convictions were therefore upheld. The Court allowed the appeal from sentence in part, concluding the appellant should receive enhanced pre-disposition custody credit at 1.5:1 per Summers, reducing the net sentence from nine years to eight years and one month.
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